Chambers v. Chambers

• Decision Date: 18 October 1928
• Docket Number: 5 Div. 998
• Citation: 218 Ala. 192,118 So. 385
• Parties: CHAMBERS et al. v. CHAMBERS.
• Court: Alabama Supreme Court

118 So. 385

218 Ala. 192

CHAMBERS et al. v. CHAMBERS.

5 Div. 998

Supreme Court of Alabama

October 18, 1928

Appeal from Probate Court, Lee County; Joe Brown Duke, Special Judge.

Proceeding by M.J. Chambers to have property of her deceased husband set apart to her as exempt from administration and payment of debts, and exception by John T. Chambers and others. From a decree for petitioner, the exceptors appeal. Affirmed.

R.B Barnes, of Opelika, for appellants.

Denson & Denson, of Opelika, for appellee.

GARDNER J.

J.R.P Chambers died on May 1, 1908, a resident of Lee county leaving 80 acres of land and personalty less in value that $1,000. Surviving decedent were his widow, Mrs. M.J. Chambers (his second wife), and no minor children, but several adult children by the former marriage. In July, 1927, Mrs. Chambers filed in the probate court of Lee county her petition asking that exemptions be set apart to her as the widow of J.R.P Chambers, deceased, and disclosing there had been no administration upon the estate.

This petition set forth all necessary averments to confer jurisdiction upon the probate court, authorizing a decree establishing the status resulting in the vesting of a fee-simple title to the property in the widow. Section 4224, Code of 1907; section 7948, Code of 1923.

Commissioners were duly appointed, report made and confirmed, and final decree rendered in accordance with the prayer of the petition. The heirs of said decedent were made parties to this proceeding and interposed certain objections or exceptions thereto, which were denied, and from the final decree rendered they have prosecuted this appeal.

From the pleadings thus interposed it is made to appear that the widow had in July, 1908, filed in said probate court her petition seeking the same relief as in the present proceeding, which was followed through to final decree, but which her counsel in January, 1927, concluded was of doubtful validity for lack of necessary jurisdictional averments in the petition that the property therein described constituted all the property owned by decedent at the time of his death and did not exceed in value and amount the exemptions allowed in favor of the widow. Miller v. Thompson, 209 Ala. 469, 96 So. 481; Singo v. McGhee, 160 Ala. 245, 49 So. 290; Cogburn v. Callier, 213 Ala. 46, 104 So. 330.

Counsel therefore on this latter date filed a bill in equity in the Lee county circuit court seeking to have the court declare that the proceeding in the probate court in 1908 was sufficient to vest fee-simple title in the widow, or, if found otherwise, and to be void, that the court ascertain the facts and so declare the title. All the probate proceedings were made exhibits to the bill. There were also averments appropriate for statutory bill to quiet title. The heirs of decedent, J.R.P. Chambers, were made parties, and demurred to the bill upon numerous grounds, among them the bill was without equity and disclosed upon its face the court had no jurisdiction for the relief sought. The demurrer was sustained and time for amendment allowed. Subsequently, the bill not being amended within the time allowed, decree was rendered dismissing the bill.

Upon the hearing in the probate court in the present proceedings, the heirs of decedent plead in abatement the pendency of the equity suit, and we are cited to what is termed the modern doctrine in 1 Corpus Juris, p. 53. The general rule, however, as recognized in this state, is found set forth in the following language of the opinion in Southern Ry. Co. v. Hayes, 183 Ala. 465, 62 So. 874:

"The plea, at best, alleged the pendency of a suit in equity. This, as a rule, is not a good plea in abatement of an action in a court of law. The remedy in such cases is to apply to the court of equity to require the plaintiff to elect as to which action or suit he will first prosecute to judgment."

Some of the reasons stated for the contrary doctrine in Corpus Juris, supra, are without application to our system. But, in any event, the foregoing general rule has long been recognized in this state, and we see no occasion to depart therefrom. The case of Orman v. Lane, 130 Ala. 305, 30 So. 441, cited by appellant, does not militate against this conclusion.

It is next insisted that the dismissal of the bill upon failure of complainant to amend within the time allowed by order of the court was, under Chancery Rule 28, equivalent to a dismissal upon the merits and the decree rendered is therefore res adjudicata, citing Crowson v. Cody, 215 Ala. 150, 110 So. 46.

Much stress is laid upon the feature of the bill as one to quiet title under the statute, and that therefore the dismissal treated as a decree upon...